MORGANTOWN — Gov. Jim Justice admitted again last week that his statewide mask order is essentially unenforceable because he can’t enact criminal penalties; only the Legislature can.
The only legal measure against someone who refused to comply, he said, would be for a business owner or manager to call the police; if the person refused to comply with a police directive, the person could be charged with obstruction of justice or trespassing,
Justice also said he doesn’t think he needs to call the Legislature into special session to enact penalties, but he’s not opposed to it. “I think our people need to speak up more, too.” If they want a special session, they need to call their legislators and his office and make it known.
So The Dominion Post polled local legislators to see if they would support a special session – either at the governor’s call or by calling themselves into session with a three-fifths supermajority vote of both houses.
Eight local legislators responded, with six favoring a special session. Senate President Mitch Carmichael also offered some thoughts. All but one replied via text or email. (As this would be a special session, we did not poll new members starting or returning in 2021.)
Sen. Bob Beach, D-Monongalia: “As we appear to be sliding off the edge for a second time, short of shutting down the state, mask use seems to be our only effective means to correct our course. As such I would be in favor of calling ourselves into session for the purpose of crafting tools to enforce the use of masks in public. Obviously no one wants to hurt our business sector, but I would argue COVID-19 is the cause of business disruption, and not the use of mask.”
Sen. Dave Sypolt, R-Preston: “My opinion is that it will do the governor no good to ask the Legislature to legitimize his executive orders by passing laws to levy a fine for not wearing a mask. I don’t believe there is a majority of House of Delegates and Senate members who would support that, and I certainly will not support that measure.”
Delegate Evan Hansen, D-Monongalia: “There’s been a need for a special session for many months. When it became clear that the governor wasn’t going to call us into session, I went on record stating that we should call ourselves back into session. While we had the numbers to do that in the House, we didn’t in the Senate. There are a number of COVID-related issues that the Legislature needs to take up, including how to spend CARES Act funding and potential public health measures like masks.”
Delegate Rodney Pyles, D-Monongalia: “I favor a mask mandate. If the governor wants a mask mandate with teeth in it, he needs to call a special session. I would support any effort to call ourselves into session. Expense? Only one or two committees have met since March, probably saved close to $100,000 by not having regular interim committee meetings: enough to cover the cost of a special session.”
Delegate Danielle Walker, D-Monongalia: “I would support Gov. Justice calling a special session. We tried at the beginning of the pandemic to call ourselves in a special session; conversely, there was not enough support in the Senate.
“The lives of West Virginians are priceless. Special session does cost, but what’s the current cost of unexpected medical costs, lost wages, loss of mortgages, and funeral expense. Each elected official understands what their constituents need and we need the government process of committee meetings to place the health and quality of life as a priority. It’s a disregard of public health with the variety of color coded maps. Public health departments need the funding to guarantee the safety of each person. Pandemic fatigue will only cost more lives.”
Delegate Terri Sypolt, R-Preston (quoting our question in her answer): I am not interested in, as you put it “crafting penalties,” in any way, shape, form, or fashion! If we were to go into a special session, it would be to rein the governor in over the abuse of power by the executive branch of our
state.
“Our state motto is “Mountaineers are Always Free” — except under indefinite state of emergencies. State of emergency declarations are not to go on indefinitely. I take this virus seriously, but we must keep our state moving forward, our small businesses open, our people working, educating our kids while taking care of each other.”
Delegate Mike Caputo, D-Marion: “I think he should have called us in session months ago. The House had enough signatures to call ourselves in but the Senate refused.”
Delegate Michael Angelucci, D-Marion, via phone interview: “He absolutely need to call us into special session” It upset him that Attorney General Patrick Morrisey voiced opposition to enforcing Justice’s executive order absent a legislative mandate. “That was unbelievable to me.”
Justice should also have the Legislature appropriate CARES funds. “The governor is not a tyrant. He’s not a king.” The money needs to go out where it’s needed – such as small businesses, bars and restaurants still suffering.
“I don’t know why he will not call us into session.” He believes many would go down for free. If nothing else, the next Legislature (the session begins in February) should assemble round tables to get input and make plans before the session begins. It’s a long stretch between now and February.
Senate President Mitch Carmichael said no one has approached him about the Legislature calling itself into session.
“Personally, I do not support the imposition of new criminal penalties for failure to wear a mask,” he said. “Under current code, if a business has posted a mask requirement, and a person is asked to leave after refusing to comply with the business’s mask requirement, the person can be charged with trespassing in that business.
“I want to reassure West Virginia citizens that our state can take reasonable measures to protect the health of our people and likewise, protect our constitutional rights. Civil liberties are and will remain of utmost importance. COVID-19 is a very serious and dangerous virus. Its prevalence among the people of West Virginia is deeply disturbing. Collectively, we are engaged in a battle to defeat COVID-19, protect public health, and restore our way of life.
In this effort, government leaders must balance on a very difficult tightrope. We absolutely want to protect people from this terrible virus while simultaneously ensuring that constitutional freedoms and civil liberties are not eroded. We believe our state can, and must, do both.”
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